I dissent. Upon the testimony in the case, it became a most pertinent inquiry for the jury whether the girl was taken by the defendant to save her from the alleged criminal assaults by her stepfather or for the purpose of prostitution. The girl had said to her mother that she would not remain, and had written to her that she would not return because she was afraid the father would “bother her again.” On the witness-stand she said that her former statements in that regard were untrue, and that the story had been concocted by the defendant.
On which occasion did she tell the truth ? Did the defendant frighten her into the assertion of a false charge ? The mother testified that she heard the stepfather say he would.'kill the girl if she told such things about him. Did this threat of the step-father frighten *617the girl into giving false testimony by denying the truth of the charge she had made? Upon the determination of these inquiries must have depended largely the question of the defendant’s motives, as well as the question of the mother’s consent, and anything tending to show which statement was correct must be material. The conduct which was imputed to the step-father was most unreasonable, unnatural, and debased; and the story was correspondingly improbable and incredible. Upon its face it carried the badge of falsity. The jury would be slow to believe that the girl ever told the defendant such a story. If, however, the jury knew as a matter of fact that the statement was true, and that the mother knew it, much less weight would be given to the testimony of the mother and daughter upon the most important questions in the case, viz., whether the girl went with the consent of the mother, and whether defendant took her for the purpose of indiscriminate prostitution. If the defense of the defendant had been that he took the girl to save her from cruel and inhuman punishment, such as burning or tying up by the thumbs, and similar questions of veracity between himself and the girl had arisen, can it be doubted that the truth of the fact claimed might be proved to show that, however improbable and incredible his statement as to his reasons might appear to be, it is nevertheless true ? While lewd conduct is no defense, it may often be an important and material circumstance tending to explain the taking away as well as to show the credibility of the witness upon some material matter to which she has testified, and to explain the motives of the defendant. I think that the evidence offered—to show the relations existing in fact between the step-father and the daughter—was most material for these purposes, and should have been admitted.
Rehearing denied.